Intellectual Property and "Open" Movements

This blog highlights Copyright, Fair Use, Patent, Trademark, Trade Secret and "Open" Movement-related topics—Open Access, Open Data, Open Government, Open Software, Open Science, Open Education—which are explored in the LIS 2184: Intellectual Property and "Open" Movements and LIS 2194: Information Ethics graduate courses I teach at the University of Pittsburgh School of Computing and Information.

Monday, August 28, 2017

Brian Cronin, Comic Book Resources; Jack Kirby’s 100 Coolest Comic Book Creations"Today would have been the 100th birthday of legendary comic book artist Jack Kirby. Comic book fans and creators from all over the world are spending today sharing their favorite memories on social media about the comic book icon. When we were thinking of ways to celebrate his tremendous impact on the world of comic books, we realized that one of the easiest ways to visualize Kirby’s impact was just to list 100 of his coolest comic book creations. So that’s just what we’re going to do. We’re going to alphabetically list 100 amazingly awesome comic book creations by Jack “The King” Kirby and we’re combing characters as much as possible, so this could easily be waaaaaaay over 100 (the X-Men, for instance, are just one entry when they could easily be six between Professor X, Cyclops, Jean Grey, Beast, Angel and Iceman). Enjoy!"

Friday, August 25, 2017

Michael D. Weil and Tierra Piens, Mondaq; United States: Even Bambi Is A Trade Secret: Eastern District Of Texas Finds That Lineage And Genetic Information Of Deer Are Trade Secrets, Grants Preliminary Injunction"Earlier this year, the North American Deer Registry (NADR) filed a complaint in the Eastern District of Texas alleging trade secrets misappropriation under the Defend Trade Secrets Act (DTSA) and the Oklahoma Uniform Trade Secrets Act. Specifically, NADR alleged that its vendor, DNA Solutions (DNAS), retained NADR's trade secret information, the contents of the database, after the conclusion of their contractual relationship.NADR hired DNAS to process the genetic information of various deer, perform genetic matching services, and host a database that eventually contained information on 230,000 deer. The contractual agreement contained a "Return of Information" provision that required DNAS to return "all NADR and NADR member Information, Biological Materials, Genetic Information and Genotype Data" at the conclusion of their contractual relationship. The contract expired on January 1, 2017. Per the contract, DNAS returned the information regarding the deer in NADR's registry, but DNAS admittedly retained a duplicate of the information."

Cody Nelson, Minnesota Public Radio; You can’t trademark yellow, Cheerios"The Cheerios’ shade of yellow isn’t “inherently distinctive” enough to qualify for a trademark, the federal Trademark Trial and Appeal Board ruled this week.General Mills had spent the past two years trying to trademark “the color yellow appearing as the predominant uniform background color” on Cheerios boxes,Ars Technica reports.Turns out the Cheerios yellow is just too average. For intellectual-property regulators to deem a color trademark-able, consumers must consider it to have a certain “distinctiveness.”"

Reuters; China says will tighten controls over intellectual property theft"China will tighten controls over intellectual property to provide better opportunities for foreign firms, the commerce ministry said on Friday.The government’s crackdown on intellectual property violations will focus on trademark registration abuse and business secret theft, Wang Shouwen, a vice commerce minister told reporters at a press briefing in Beijing, adding that China’s IP protection was “not perfect” as a developing country.U.S. President Donald Trump this month authorized an inquiry into China’s alleged theft of intellectual property -- the first direct trade measure by his administration against Beijing."

FALSE. In the USA, almost everything created after April 1989 is copyrighted and protected whether it has a notice or not. The default you should assume for other people’s works is that they are copyrighted and may not be copied unless you know otherwise.

MYTH: It is okay to copy as long as you give proper credit to the author/artist.

FALSE. If you copy an original writing, graphic, song, or other work without permission, you are guilty of copyright infringement.The Digital Millennium Copyright Act [DMCA] restricts access to or distribution of copyrighted material.Violators may be subject to civil and criminal penalties.

MYTH: I goofed and used someone’s graphic on my web page without realizing that it is copyrighted, but I cannot be sued as long as it was an honest mistake.

FALSE. Ignorance of the law is no excuse.Copyright law does not care about your “intent”, only that you have infringed work of another.

MYTH: It is okay to use less than 10% of someone’s work.

FALSE. Although it may be permissible to use limited portions of a work for limited purposes, there is no rule permitting a certain percentage of the work to be reproduced, distributed, performed or translated."

Jyoti Panday, Electronic Frontier Foundation (EFF); Will TPP-11 Nations Escape the Copyright Trap?"Latest reportsconfirm that the Trans-Pacific Partnership (TPP) is being revived. The agreement had been shelved following the withdrawal of the U.S. from the negotiation process. Over the past year, countries eager to keep the pact alive have continued dialogue and rallied support of less enthusiastic members to move forward with the agreement without the U.S. A revised framework is expected to be proposed for approval at the Asia-Pacific Economic Cooperation (APEC) TPP-11 Ministerial Meeting in November.We had previously reported the remaining eleven nations (TPP-11) had launched a process to assess options and consensus on how the agreement should be brought into force. A recent statement by New Zealand's Prime Minister suggests that countries favor an approach that seeks to replicate TPP provisions with minimal number of changes."

Thursday, August 17, 2017

Sarah Cascone, artnetnews; With ‘Open Access,’ the Met Museum’s Digital Operation Has a Bona Fide Hit on Its Hands"In February, New York’s Metropolitan Museum of Art announced that it waspursuing a new Open Access policy—releasing high-resolution imagery of all its public-domain works (over 375,000 in total). Six months later, the new initiative has had a major impact on sites such as Wikimedia and Creative Commons, and the museum is continuing to branch out. This week, the Met announced a partnership with Google’s data analytics platform,BigQuery.“During what is just the dawn of this new initiative, the responses so far have been incredible,” wrote Loic Tallon, the museum’s chief digital officer, in ablog post.The numbers speak for themselves. According to Tallon, the Met’s website has seen a 64 percent increase in image downloads since Open Access was implemented, as well as a 17 percent bump in traffic to the online collection. Users who download photographs are now spending five times as long on the site."

Associated Press via New York Times; Augusta National Sues to Stop Auction of Green Jackets"Green Jacket Auctions is in "wrongful possession" of all three jackets and does not hold the legal title to any of them, the lawsuit says.Additionally, the online sale includes silverware stamped with the trademarked Augusta National map and flag logo. Augusta National does not sell or give away the proprietary silverware, so the only way someone could get it is to steal it from the golf club, meaning the silverware listed in the sale is either stolen or counterfeit, the lawsuit says.Green Jacket Auctions is also selling a belt buckle with the trademarked map and flag logo, an item that was never approved by, licensed by or developed on behalf of Augusta National, the lawsuit says.Green Jacket Auctions' "marketing efforts are clearly intended to draw upon the valuable reference to the Augusta National Golf Club and the extensive secondary meaning associated with (Augusta National Inc.'s) Marks, and ability of consumers searching those trademark names to land on the offending website," the lawsuit says.The lawsuit asks a judge to order Green Jacket Auctions not to use Augusta National trademarks and not to deceptively or unfairly compete with Augusta National. It also asks that the jackets and silverware be returned to Augusta National and the belt buckle destroyed. Augusta National also asks for damages and legal fees."

Sarah Butler, Guardian; Toblerone shape not distinctive enough for trademark, Poundland claims"Poundlandhas claimed Toblerone’s shape is no longer distinctive enough to be a valid trademark, in legal documents defending its right to launch a copycat bar.Last month, the budget chain was forced todelay the launchof its Twin Peaks bar, which has two humps rather than the single peaks of Toblerone, after a legal warning from the brand’s owner, a Swiss division of Mondelēz...Toblerone is one of Poundland’s most popular products, with 11m bars sold last year. But the retailer says it decided to bring out Twin Peaks “in response to the unfavourable reception” that greeted Toblerone’s new version with fewer chunks, launched last year."

On 11 August, the US Trademark Trial and Appeal Board cancelled the New York-headquartered company's exclusive right to use "Trump" in relation to entertainment services, including reality TV shows.

The ruling followed earlier victories by San Francisco-based Tom Scharfeld, in which he prevented the Trump Organization from owning the exclusive right to use "Trump" in connection with computer games, golf-related mobile apps and music streaming."

Tuesday, August 15, 2017

Robert Hart, Quartz; If an AI creates a work of art, who owns the rights to it?"Without developing some form of framework recognizing AIs as legal persons, just as monkeys are not, we cannot award an AI copyright. “And we’re a long way from that moment, if we’ll ever get there,” Bridy says. The most likely near-term solution would be to award copyright to the owners of the AI itself, which would be similar to how employers automatically own the work their employees produce."

Shay Castle, Daily Camera; Niwot-based Crocs may lose claim to iconic clog following patent ruling"The USPTO ruled Crocs patent D517789 invalid,Footwear News first reported. A similar design was published more than one year before Crocs' application, the agency found.Crocs has been involved in litigation over alleged ripoffs for more than a decade. The company sued 11 other shoemakers in 2006. Most were dismissed. USA Dawgs, added to the suit in 2012, celebrated the most recent decision by federal authorities...Patent 789 has been ruled invalid twice before. The current ruling is considered final, but Crocs can appeal to the Federal Circuit courts if attempts to overturn the ruling through the PTAB are unsuccessful."

Travis M. Andrews, Washington Post; Costco made $3.7 million selling ‘Tiffany’ rings. Now it must pay $19 million to the real Tiffany."Instead, Costco argued that “Tiffany” is a commonly used, generic term to describe a particular type of ring setting.Tiffany was founded in 1837 and quickly became one of the world’s leading jewelers. One of its early achievements was inventing a new type of ring setting in 1886. In an attempt to show more of the gem, it set the stone in a metal claw extending from the ring’s band. Before this, diamonds were set in a full shallow cup of metal, obscuring most of the stone, according to Forbes.The setting was extremely successful and immediately attracted imitators. By now, as Forbes wrote, “the term ‘Tiffany setting’ has reached Kleenex status — it’s now used colloquially throughout the jewelry industry to describe any multi-pronged solitaire setting, Tiffany or no.”Swain wrote Costco “provided credible evidence” of the practice of using the terms “Tiffany setting” and “Tiffany style” generically throughout the jewelry industry.The problem is Costco only used the word “Tiffany” when describing the rings in its signage, suggesting they were made by the jeweler rather than an imitation of its famous design."

Dennis C. Blair and Keith Alexander, New York Times; China’s Intellectual Property Theft Must Stop"Perhaps most concerning, China has targeted the American defense industrial base. Chinese spies have gone after private defense contractors and subcontractors, national laboratories, public research universities, think tanks and the American government itself. Chinese agents have gone after the United States’ most significant weapons, such as the F-35 Lightning, the Aegis Combat System and the Patriot missile system; illegally exported unmanned underwater vehicles and thermal-imaging cameras; and stolen documents related to the B-52 bomber, the Delta IV rocket, the F-15 fighter and even the Space Shuttle.President Trump’s action on Monday acknowledges the broad scope of the challenge. Central to Chinese cybersecurity law is the “secure and controllable” standard, which, in the name of protecting software and data, forces companies operating in China to disclose critical intellectual property to the government and requires that they store data locally. Even before this Chinese legislation, some three-quarters of Chinese imported software was pirated. Now, despite the law, American companies may be even more vulnerable."

Ana Swanson, Washington Post; Trump administration goes after China over intellectual property, advanced technology"President Trump signed an executive memorandum Monday afternoon that will likely trigger an President Trump signed an executive memorandum Monday afternoon that will likely trigger an investigation into China’s alleged theft of U.S. intellectual property, a measure that could eventually result in a wide range of penalties as the administration seeks a new way to deal with what it calls Chinese violations of the rules of international trade.“The theft of intellectual property by foreign countries costs our nation millions of jobs and billions and billions of dollars each and every year,” Trump said, as he signed the memo surrounded by trade advisers and company executives. “For too long, this wealth has been drained from our country while Washington has done nothing... But Washington will turn a blind eye no longer.”Officials said the memorandum would direct their top trade negotiator, U.S. Trade Representative Robert E. Lighthizer, to determine whether to launch an investigation. The inquiry would give the president broad authority to retaliate if it finds that China is compromising U.S. intellectual property. U.S. intellectual property, a measure that could eventually result in a wide range of penalties as the administration seeks a new way to deal with what it calls Chinese violations of the rules of international trade."

Monday, August 14, 2017

HopgoodGanim, Lexology; Do I need an overseas trademark?"There is no such thing as an “international” registered trademark. Trademarks are registered on a jurisdiction by jurisdiction basis.However, there are ways in which you can quickly and cost-effectively file in multiple jurisdictions at the same time, which we discuss further below.If you are selling or promoting goods or services in another country (or indirectly, by distributors or agents), then it is advisable to apply to register a trademark in that overseas country. Otherwise, you risk losing your rights to your brand in that country or potentially infringing another’s registered trademark...

How can I register my trademark overseas?

There are two ways a business owner can register a trademark overseas:

apply directly for registration in the country that the business owner wishes their trademark to have effect; and

CBS News; Gucci sues Forever 21 for trademark infringement"International fashion house Gucci has been sending its iconic stripes down the runway for more than half a century in blue-red-blue and green-red-green.But they're not alone, reports CBS News' Dana Jacobson. Similar designs with similar stripes are being sold by Forever 21. Now Gucci is suing the fast-fashion retailer for trademark infringement."Gucci is really having a moment and driving a lot of sales with these stripes," said Susan Scafidi, director of the Fashion Law Institute at Fordham University."How can you actually trademark stripes?" Jacobson asked."When consumers recognize a certain striped pattern, whether it's Gucci's green, red, green, or Adidas' three-striped mark, then we give those companies recognition that those marks belong to those companies," Scafidi said."

Sean Cavanagh, EDWeek Market Brief; How Did ‘Copyright Piracy’ Language Get Into ESSA, the K-12 Law?"TheEvery Student Succeeds Actis meant to accomplish many things. Hold schools accountable for more than test scores. Unleash new strategies to fix struggling schools. Offer new, more flexible funding to districts.But language included in the sweeping, 400-page-plus law also lays out another, less expected goal: informing students and parents about “the harms of copyright piracy.”Wording that urges school officials and parents to explain the importance of preventing the illicit use of copyrighted material is improbably found in a couple sections of the law, alongside more predictable school policy language on literacy, professional development, and student achievement.Which raises the obvious question: How did it get in there?"

Sunday, August 13, 2017

Kip CurrierEntrepreneurialism and IP at Steel City Con Steel City Con (a Burgh-based pop culture convention in the vein of San Diego's famed Comic Con) has been running all weekend at the Monroeville Convention Center (13 miles from downtown Pittsburgh) and is finishing up today. I attended Saturday, August 12th (--the biggest "autograph" lines I saw were for Burt Reynolds! And it was cool to get up-close looks at three of the Brady Bunch kids, "Greg", "Bobby", and "Cindy"..."the youngest one in curls".--) and chatted with a number of very creative Western Pennsylvania entrepreneurs, showcasing and selling their self-made wares. In a variety of ways, they're using and working with (some would say infringing upon) Intellectual Property, and, in some cases, transforming Intellectual Property into new works.Decals are a big seller at Conventions, like this X-Men decal:

Some examples of works that I observed being sold at the Con veer closer to (and step over?) the edge of infringement than others that can make stronger arguments for "transformativeness". Cristine Cordero's Heroes and Heels is a good example of the latter. Cristine told me that she uses actual comic book-clipped images to bring one-of-a-kind "custom created comic book shoes" to life...and her customers' feet.

Some have even been worn at superhero-themed weddings. ("I now pronounce you husband and..Deadpool?")

I asked each vendor with whom I spoke if they had had any requests to "cease and desist", or worse, from the companies that own the IP rights to, say, Star Wars, Harry Potter, the Suicide Squad, and the Avengers. Everyone shook their heads or said that they hadn't experienced anything like that. A few told me that any IP rights enforcement-type issues that they'd seen at conventions were relegated to films and videos, more associated with digital piracy. One seller told me he hadn't ever seen anyone roaming around the Cons enforcing IP rights. (As an IP instructor, I contrasted that with copyright enforcement examples I'm well aware of, involving licensing "sheriffs" on the lookout for copyright scofflaw musicians and cover bands. See here and here.)I saw some really ingenious mashups of popular TV shows and characters. This T-Shirt combines the high mortality rate trope of the Red-Shirted security officers in the orginal Star Trek series (--if Star Trek were a chess game, the Red Shirts would be your pawns), with the series name of a popular zombie apocalypse TV show you may have heard of:

"Where do you come up with these ideas", I asked their maker?"In the middle of the night they come to me. About 4 am", she chuckled.Another seller with GoodsandEvil.com told me that Pittsburgh-born Greg Nicotero, the special effects guru extraordinaire on The Walking Dead, had just bought up a bunch of his clever zombie-themed shirts to take back to the crew. "Pretty cool to think that these shirts may be worn by people on the set", he understandably beamed. I told him I really liked the t-shirt below, a creative homage to the Western Pennsylvania-referenced places in 1968's (copyright-free!) Night of the Living Dead film and its cinematic zombie progeny, made by Pittsburgh's own George Romero, recently deceased. I snapped up one for myself, and one for my nephew, who's a big fan of The Walking Dead--before Greg Nicotero could circle back and clean them out (for We Are Negan? Rick's Gang? Shiva???).

My brother (the above-mentioned nephew's father) has been a big fan of Jack Nicholson's iconic "Here's Johnny" scene in Stephen King's The Shining, featured on another local entrepreneur's horror-themed ceramics. Perfect for that next office cocktail party (wasabi peas, anyone?):

Bringing it back to myself...I've always loved the scene in The Fellowship of the Ring where Ian McKellen-cum-Gandalf the Wizard stares down a fiery Balrog. With just his staff and a full-throated "You Shall "Not Pass". Now I can own Gandalf's "red line" on a yellow metal sign...and daydream about where I'd like to place it.

And for any of you Games of Thrones fans out there (or, if you're not a GOT devotee but are looking for a truly unique stocking stuffer for later this year)...how about custom-made Chain Mail for your canine BFF? Not that even Valyrian chain mail would do much good, should you be unlucky enough to find a Drogon-driving, "Dracarys"-dripping Daenerys Targaryen bearing down on you on some windswept plain.

Glenn Thrush and Alan Rappeport, New York Times; Trump Cautious on China Inquiry Over Intellectual Property Theft"Mr. Trump will return to Washington from his working vacation at his Bedminster, N.J., golf resort on Monday to sign an executive memo asking the United States Trade Representative to determine whether to investigate state-backed theft by China of intellectual property from American technology and defense companies.The request for an investigation will focus on Beijing’s practices of coercing American companies doing business in China to partner with local firms, which require them to turn over proprietary technological secrets as part of what American officials described as a coordinated effort to steal intellectual property.Mr. Trump’s trade advisers, speaking to reporters on a conference call early Saturday, did not say why the administration decided to add the intermediate step of requesting an investigation, rather than starting one immediately. This month, people familiar with Mr. Trump’s deliberations suggested that the administration was prepared to immediately begin an inquiry into Chinese theft under the 1974 Trade Act."

Saturday, August 12, 2017

Jeremy Diamond, CNN Money; Trump to China: Trade probe is coming Monday"Trump told President Xi Jinping that he plans to direct U.S. Trade Representative Robert Lighthizer on Monday to begin the probe into alleged Chinese violations of U.S. intellectual property rights, the official said.The move could lay the groundwork for Trump to impose tariffs against Chinese imports, which would mark a significant escalation in his efforts to reshape the trade relationship between the world's two largest economies."

Friday, August 11, 2017

"A new filing through the U.S. Patent and Trademark Office reveals that Mercedes-Benz has developed an exterior airbag for pedestrians...The Drive speculates that this technology is similar to some employed by Volvo but left undeveloped. In addition, companies apply for patents to protect intellectual property that might never be used."

Joe Carlson, Star Tribune; Mayo prevails in patent case, but legal fight isn't over"Mayo Clinic has successfully invalidated the patent on a method of diagnosing a rare autoimmune disorder, handing the Minnesota health system a legal victory against one of the largest private lab companies in the U.S."

Alan Inouye, ALA District Dispatch; The Copyright Office belongs in the Library of Congress"In “Lessons From History: The Copyright Office Belongs in the Library of Congress,” a new report from the American Library Association (ALA), Google Policy Fellow Alisa Holahan compellingly documents that Congress repeatedly has considered the best locus for the U.S. Copyright Office (CO) and consistently reaffirmed that the Library of Congress (Library) is its most effective and efficient home.Prompted by persistent legislative and other proposals to remove the CO from the Library in both the current and most recent Congresses, Holahan’s analysis comprehensively reviews the history of the locus of copyright activities from 1870 to the present day. In addition to providing a longer historical perspective, the Report finds that Congress has examined this issue at roughly 20-year intervals, declining to separate the CO and Library each time."

"In order to be copyrightable as a derivative work, the new work must “add new original copyrightable authorship.” We will (shall?) see whether these small changes were big enough to warrant copyright protection. And if a court indeed finds that it is, well, I guess that means it’s time for me to start marketing “Ringing Bells.”"

McCareins: A prior art search needs to be done to make sure that what you’re getting patented is really and uniquely your own. There may be a temptation not to do a comprehensive search because it's expensive, but you don’t want to find out later that someone had the same invention.

People say, “Well I got a patent so I’m good to go,” but that’s only half the battle. Even when the U.S. Patent and Trademark Office has granted a patent, that doesn’t mean a federal court might not come in later and invalidate that patent based on another party’s complaint.

Slawniak: When you file a patent, look around and do a search. See what other folks in the industry are doing. See what other patents are out there. Read the scholarly work around technology in your field and have some conversations with people in the industry. Your patent is a reflection of your R&D investment and your technological advantage, so it's important to know exactly where that product differentiation is. An exhaustive search will ensure you have a strong patent, and hopefully help your patent issue faster. When you have something you believe has value, it’s worth the investment of time to develop and protect it. "